DPP v Cormac Fitzpatrick and Terry McConnell

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 25 July 2012
• Neutral Citation: [2012] IECCA 74
• Docket Number: [C.C.A. Nos. 32 & 35 of 2010]
• Court: Court of Criminal Appeal
• Date: 25 July 2012

Fitzpatrick & McConnell v DPP

Between

Cormac Fitzpatrick and Terry McConnell

Appellants

And

The People at the Suit of the Director of Public Prosecutions

Respondent

[2012] IECCA 74

O'DonnellJ.

de Valera J.

Gilligan J.

CCA/35/10 & 32/10

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Appeal

Applications for leave to appeal against conviction - Possession of explosive substances - Disclosure - Privilege - Informer privilege - Whether trial ought to have been stayed - Whether absence of special counsel system to determine contested issues of privilege breach of right to fair trial - Failure to raise issue of disclosure in advance of trial - Whether verdict perverse - Whether facts as established insufficient to establish possession in law - Elements to law on possession - Refusal to account for items in possession - Corroboration - Whether appellant afforded reasonable opportunity to consult solicitor prior to refusal - Whether reasonable opportunity to consult solicitor must occur in relation to inference to be drawn - Right of reasonable access to solicitor - Right to silence - Trial by Special Criminal Court - Availability of detailed reasoning of court - Whether miscarriage of justice - DPP v Special Criminal Court [1999] 1 IR 60; R v United Kingdom [2000] 30 EHRR 1; R v Leipert [1997] 2 LRC 260; McD(J) v L(P) [2008] IEHC 96, [2009] IESC 1, [2010] 2 IR 199; Marks v Beyfus [1890] 25 QBD 494; Heaney v Ireland [1996] 1 IR 580; Rock v Ireland [1997] 3 IR 484; DPP v Healy [1990] 2 IR 73; Heaney v Ireland [2001] 33 EHRR 12; Murray v United Kingdom [1996] 22 EHRR 29 and DPP v Ryan [2011] IECCA 6, (Unrep, CCA, 11/3/2011) considered - Offences Against the State Act 1939 (No 13), s 52; Criminal Justice Act 1984 (No 22), ss 18 and 19 - European Convention on Human Rights Act 2003 (No 20) - Constitution of Ireland 1937, Art 38 - European Convention on Human Rights 1950, art 6 - Leave to appeal refused (32/2010 & 35/2010 - CCA - 25/7/2012) [2012] IECCA 74

Fitzpatrick v The People (Director of Public Prosecutions)

Facts: The appellants had been arrested in 2008, after Gardai raided a flat in Clondalkin. The appellants had been found in the flat, wearing latex gloves in a different room from where a large quantity of explosive components had been found. The appellants' defence was rejected at trail in the Special Criminal Court and they were convicted of the charge against them. They now sought to appeal, albeit on separate grounds of appeal.

Held by O'Donnell J, that the appellant's grounds of appeal were entirely separate, and would be considered in turn.

The second appellant appealed claiming that the state's claim of privilege on whether any of the co-accused were informers meant that he was unable to receive a fair trial a mandated by art 6 of the European Convention on Human Rights ("ECHR"). The Court considered that it was established that an informant's identify was privileged subject to the innocence at stake exception. This issue had to be addressed only where necessary and essential and in a focused manner. This was not the case in the instant case, where the point was only raised late in the course of the trail and in an imprecise fashion. His appeal would therefore be refused.

The first appellant's appeal turned firstly on the facts in which he had been found in the flat, generally and also specifically having dropped an alarm clock. The Court considered that there were sufficient facts on which the trial Court had been entitled to infer that the appellant had been in possession of the offending items.

Of more substance was the submission he had been denied access to his solicitor after s 18 of the Criminal Justice Act 1984 relating to inferences was invoked by Gardai in his interview. Having reviewed the domestic and ECHR jurisprudence, the Court considered the manner of questioning the appellant fell short of the requirements of s 18. However, the failure here did not mean the conviction was fundamentally flawed. Considering the facts as a whole, the appellant had been found in sufficient circumstances, and without good explanation, to justify a conviction as charged. His appeal would also therefore be dismissed.

EXPLOSIVE SUBSTANCES ACT 1883 S4

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S15(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL JUSTICE ACT 1984 S19

CRIMINAL JUSTICE ACT 2007 S29(1)

DPP & WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60

R & DAVIS v UNITED KINGDOM 2000 30 EHRR 1 8 BHRC 325

R v LEIPERT 1997 2 LRC 260 143 DLR (4TH) 38 1997 1 SCR 281

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)

MCD (J) v L (P) & M (B) 2010 2 IR 199

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

CAHILL MCD v L & THE INCORPORATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 2010 45 IJNS 221

CONSTITUTION ART 38

MARKS v BEYFUS 1890 25 QBD 494

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 2007 S28(1)

CRIMINAL JUSTICE ACT 1984 S18(3)

CRIMINAL JUSTICE ACT 1984 S19A

OFFENCES AGAINST THE STATE ACT 1939 S52

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996

CRIMINAL JUSTICE ACT 2007 S28

CRIMINAL JUSTICE ACT 2007 S29

HEANEY & MCGUINNESS v IRELAND & AG 1996 1 IR 580 1997 1 ILRM 117 1996/11/3768

ROCK v IRELAND & AG 1997 3 IR 484 1998 2 ILRM 35 1998/37/13991

DPP v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277

HEANEY & MCGUINNESS v IRELAND 2001 33 EHRR 12

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

MURRAY v UNITED KINGDOM 1996 22 EHRR 29 1996 ECHR 3

CRIMINAL EVIDENCE (NORTHERN IRELAND) ORDER 1988 SI 1987/1988 (UK)

CRIMINAL JUSTICE ACT 1984 S18(3)(B)

CRIMINAL JUSTICE ACT 1984 S18(3)(A)

DPP v RYAN UNREP CCA 11.3.2011 2011 IECCA 6

CRIMINAL PROCEDURE ACT 1993 S3

1 At approximately 1.20 a.m. on the 9 ^th September, 2008, An Garda Síochána raided a one bedroom apartment in Clondalkin, Dublin. They found two men (who are not the appellants in the present case) in the apartment proper. On the table, and in full view, was a large quantity of materials for the construction of bombs, which were accordingly "explosive materials" within the meaning of the Explosive Substances Act 1883, as amended. There were four screw threaded lengths of pipe, 620 grammes of propellant power. four capsule bulbs, seven nine volt batteries, seven travel alarm clocks, lengths of three core wire, a soldering iron and a pack of four inch nails. Also found in the apartment was a walkie-talkie tuned to a frequency. A similar walkie-talkie was recovered from a man in a car outside the apartment building.

2 The appellants were found in the bathroom wearing latex gloves. Also found in the bathroom was an alarm clock, with wiring coming from it, two batteries and a plate containing an explosive substance which had been partially scorched or burnt. There was a dispute, to which it will be necessary to return, as to whether either of the men had any of the objects on their person. A number of gardaí gave evidence to the effect that Cormac Fitzpatrick, the first appellant, was seen to drop the clock and battery onto the floor. The coat of Terry McConnell, the second appellant, was hanging over a chair in the living area of the apartment. Mr. Fitzpatrick's cigarettes were recovered in the kitchen area. The appellants were charged with possession of an explosive substance in circumstances such as to give rise to a reasonable suspicion that they did not have it in their possession for a lawful objective, contrary to s.4 of the Explosive Substances Act 1883, as amended by s. 15(4) of the Offences Against the State (Amendment) Act 1998.

3 Both appellants gave evidence at the trial which was broadly similar in its terms. Mr. McConnell was working in Monaghan with Mr. Fitzpatrick. He was friendly however with a Gerard Mackin, then in Portlaoise Prison and awaiting trial at the Special Criminal Court. Mr. McConnell had visited Mr. Mackin in Portlaoise Prison on the 6 ^th September, and for reasons that are not explained, Mr. Mackin was apparently confident of being released the following month (a confidence which transpired to be misplaced). Mr. McConnell offered to help Mr. Mackin get accommodation in the Dublin area when he was released. Mr. Mackin had befriended a man in custody, Declan Duffy, and Mr. Duffy's brother-in-law, Declan Comerford, was also to assist Mr. McConnell in organising accommodation. Mr. McConnell had met Mr. Comerford in Burger King in Tallaght later that day and they had arranged to meet again on the 8 ^th September.

4 Mr. McConnell's evidence was that he was travelling in his own car to Dublin to meet Mr. Comerford to finalise arrangements and to provide evidence of his means. He asked Mr. Fitzpatrick to come along "for the spin". However, Mr. McConnell got lost and pulled into the Kestrel Hotel car park in Walkinstown. He rang Mr. Comerford. Soon after that a car pulled into the car park and Mr. McConnell received a phone call, which he believed was from Mr. Comerford, directing his attention to the car, and when it left he followed it. Sometime later the car stopped and another man, Gareth Pigott, got out and got into Mr. McConnell's car and directed him to the apartment. Once in the apartment, Mr Pigott produced a bag from which he removed the gloves and some of the equipment subsequently recovered by the gardaí. The appellants were told to put on the latex gloves. This they did although they were frustrated and scared. They went into the bathroom to have a word. Before they could do anything the gardaí arrived.

5 This then was the account that both appellants gave to the court to explain why they, two men from County Monaghan, had travelled to Dublin, made an apparent rendezvous in a car park, picked up...